Tomorrow’s Supreme Court Rumors Today
Rumor has it that Kim McLane Wardlaw (9th Circuit) may be the front-runner for the Supreme Court. You know she’d be a good justice because she’s got “law” in her name. But there’s also a certain poetry in this, as she wrote the lower-court brief in the case that most recently highlighted the gender imbalance on the court, Redding v. Stafford, in which the 89%-male body held that it was no big deal for a thirteen-year-old girl to be subjected to sexual humiliation from school officials in an fruitless effort to find ibuprofen on her person.
Adam Wolf, the ACLU lawyer who represents Redding, explains that “the Fourth Amendment does not countenance the rummaging on or around a 13-year-old girl’s naked body.” Wolf explains that he is arguing for a “two-step framework,” wherein schools can use a lower standard to search “backpacks, pencil cases, bookbags” but a higher standard when you “require a 13-year-old girl to take off her pants, her shirt, move around her bra so she reveals her breasts, and the same thing with her underpants to reveal her pelvic area.” This leads Justice Stephen Breyer to query whether this is all that different from asking Redding to “change into a swimming suit or your gym clothes,” because, “why is this a major thing to say strip down to your underclothes, which children do when they change for gym?”
This leads Ginsburg to sputter—in what I have come to think of as her Lilly Ledbetter voice—”what was done in the case … it wasn’t just that they were stripped to their underwear! They were asked to shake their bra out, to stretch the top of their pants and shake that out!” Nobody but Ginsburg seems to comprehend that the only locker rooms in which teenage girls strut around, bored but fabulous in their underwear, are to be found in porno movies. For the rest of us, the middle-school locker room was a place for hastily removing our bras without taking off our T-shirts.